Matt Qvortrup: Constitutional crisis looms over Brexit

Crisis, what crisis? Said the late Labour prime minister, James Callaghan, in 1976 when the International Monetary Fund was called in to supervise the collapsing British economy.

A constitutional crisis could loom for the UK. Picture; PA
A constitutional crisis could loom for the UK. Picture; PA

Being oblivious to impending doom – to steadfastly refuse to see the warning signs – has been something of a British character trait since Nelson put the telescope to the blind eye during the Battle of Copenhagen.

And now we are at it again. The prospect of a showdown between Westminster and the devolved administrations over Brexit has been all but ignored by Theresa May and other senior ministers in London.

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As in all other Brexit related matters, the general position is that “it will be a success”, and other prosaicisms uttered by our Prime Minister with an air of certainty that bespeaks a lack of self-confidence.

But it will take more than platitudes to avert the impending doom.

After the visits to Brussels by Nicola Sturgeon and her Welsh counterpart, Carwyn Jones, it is increasingly clear that the devolved parliaments and assemblies are unlikely to agree to the terms of the Brexit divorce offered by Downing Street. So what will happen?

Constitutionally speaking the Brexit negotiations are not a devolved matter. And, legally speaking, the devolved administrations could “go whistle”, to use Boris Johnson’s not entirely helpful expression.

From the point of view of British Constitutional law – which, admittedly, is not a well-defined body of jurisprudence – Parliament in London reigns supreme and even a simple statute could (legally speaking) repeal the acts governing the devolved parliaments. If an act of parliament contradicts or clashes with The Scotland Act 1997, the latter gives way and is nullified under what technically is known as “implied repeal”.

Lack of consent from Scotland and Wales, could be ignored altogether by Westminster.

Legally speaking, there is very little the First Minister of Scotland (and her less powerful colleague in Wales) could do to stop a hard Brexit, or even a soft Brexit that transferred EU powers over fisheries back to London rather than to Edinburgh or Cardiff.

But politically speaking such a move would create a massive constitutional showdown between the devolved parliaments and Westminster.

Historically speaking, the political clash between the Tory administration and the SNP administration in Edinburgh would be similar to the crisis that erupted when the Irish nationalists won the election in 1919 and were ignored by the British.

The election victory did not give Eamon de Valera any legal or constitutional powers, but by ignoring the grievances of the Irish and by invoking constitutional principle the British suffered a moral defeat that strengthened the hitherto rather weak support for independence.

By ignoring the Scots and by using legal arguments instead of good political sense, May is in danger of creating the ideal conditions for indyref2.

Professor Matt Qvortrup is a lawyer and a political scientist at Coventry University. His book, Referendums Around The World, will be published by Palgrave in September